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ISCR Case 07-04193.a1 — CASE

ISCR Case 07-04193.a1denied

Case Headnote

ISCR Case No. 07-04193.a1

Jul 3, 2008· Hon. Michael Y. Ra'anan· appeal

Summary

A 52-year-old defense contractor employee was denied a security clearance due to multiple disqualifying conditions under Guidelines E (Personal Conduct), J (Criminal Conduct), and M (Use of Information Technology). The applicant repeatedly violated company policy by viewing sexually explicit websites while at work.

Additionally, the applicant falsified information on security forms concerning his terminations from previous employers. These actions led to the judge finding the applicant's conduct disqualifying.

The security clearance denial was affirmed, with the judge concluding that the decision was not arbitrary or capricious given the established pattern of policy violations and misrepresentation.

Conditions Referenced

Disqualifying

AG EraisedPersonal Conduct
AG JraisedCriminal Conduct
AG MraisedMisuse of Information Technology Systems

Key Rule Quoted

“The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security.’”
— Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural Posture

SOR issuedSep 25, 2007
Answer filed—Applicant requested decision on written record.
Hearing held—No hearing; decision based on written record.
Decision dateJul 3, 2008

Cite For

Disqualifying Conduct Related to Personal Conduct Under Guideline E
Falsification of Information on Security Forms Under Guideline J
Misuse of Information Technology Systems Under Guideline M

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

Appeal at a glance· Full written decision

Affirmed

The appeal involved an applicant who was denied a security clearance due to violations of company policy regarding internet use and falsifications on an EQNSP. The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowJoseph Testan — denied the clearance

Decided onthe written record

Guidelines belowGuideline EGuideline MGuideline J

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge's adverse clearance decision is arbitrary, capricious or contrary to law.

Why the Board ruled this way

The Board found no error in the Judge's decision, affirming that the adverse clearance decision was supported by substantial evidence and was not arbitrary or capricious.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionNo new evidence on appeal

Appeal Board panel

Michael Y. Ra’anan — Chair
Michael D. Hipple
William S. Fields

Descriptive structured reading of this decided, public Appeal Board decision — what the case says, not a prediction or advice.

Full decision

The complete, official text — footnotes and signatures included — is in the original PDF.

Decision text, by section

DEFENSE OFFICE OF HEARINGS AND APPEALS

APPEAL

SYNOPSIS

KEYWORD: Guideline E; Guideline M; Guideline J DIGEST: The Judge found that Applicant violated company policy by viewing sexually explicit websites from work at three different employers, two of whom fired him for the conduct. Applicant falsified an EQNSP and lied to an OPM investigator. Adverse decision affirmed. CASENO: 07-04193.a1 DATE: 07/03/2008 DATE: July 3, 2008 In Re: ------------- Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 07-04193

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro Se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On September 25, 2007, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline E (Personal Conduct), Guideline M (Misuse of Information Technology Systems) and Guideline J (Criminal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested that the case be decided on the written record. On March 19, 2008, after considering the record, Administrative Judge Joseph Testan denied Applicant’s request for a security clearance. Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the following issue on appeal: whether the Judge’s adverse clearance decision is arbitrary, capricious or contrary to law. Finding no error, we affirm. The Judge made the following relevant findings: Applicant is a 52-year-old employee of a defense contractor. Applicant was fired by Employer A in 2000 for continued violations of the company’s internet policy; namely, viewing sexually explicit websites on his company computer. He had previously been counseled about viewing pornographic websites on his company computer during duty hours. While working for Employer B in 2001, Applicant accessed and viewed pornographic websites, and downloaded material from those websites, during work hours. His employer never found out about this activity, which was prohibited by company policy. In 2002, Applicant was counseled by Employer C about his need to work on government contracts instead of accessing pornographic websites on the company computer. He received this counseling after it was determined he had downloaded approximately 145 pornographic videos onto his computer. After this counseling, his computer activities were monitored by his employer without his knowledge. He was subsequently observed accessing pornographic websites and was fired. Applicant falsified material facts on an Electronic Questionnaire for National Security Positions (EQNSP) he executed in March 2006 when he lied about the reasons he was fired by Employers A and C. He lied because he was afraid that if he revealed he was fired for viewing pornography on company computers, it might adversely affect his security clearance. Applicant also lied about the reason he was fired from Employer C during an interview with an OPM investigator in August 2006. He lied because he was afraid that if he told the truth, it could adversely affect his security clearance. In a signed, sworn statement he gave to a Special Agent of the Defense Security Service (DSS) in September 2007, Applicant stated that he could not state “with 100% certainty” that he would not access pornographic websites at his place of employment. In response to the government’s File of Relevant Material (FORM), Applicant stated that following his termination from Employer C, he promised his wife that he “would not risk losing employment by improperly using company assets to access pornography at any future work place.” He further stated, “This promise is the main reason I have been successful in only using IT systems as allowed by the rules of the organization in which I worked since August 2002.” He also stated that he has recently started counseling on his “pornography problem.” On appeal, Applicant argues that his disqualifying conduct and falsifications were “isolated to this particular process,” and resulted from his embarrassment and fear. Because those events “are now in the open and there is no longer any reason for [him] to conceal them,” he requests that the Judge’s adverse decision be reversed. Applicant has not demonstrated that the Judge erred. Once the government presents evidence raising security concerns, the burden shifts to the applicant to establish mitigation. Directive ¶ E3.1.15. In this case, Applicant admitted to the allegations in the SOR with explanation. He elected to have his case decided on the written administrative record and then filed a one-page response to the government’s FORM. As a result, the Judge did not have an opportunity to question him about his conduct and omissions, and evaluate his credibility in the context of a hearing. The Board has examined the Judge’s decision in light of the record as a whole and concludes that the Judge has drawn a ‘rational connection between the facts found’ under Guidelines E, M and J and his adverse decision. Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)(quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). “The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security.’” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). Given the limited record that was before him, the Judge’s unfavorable clearance decision is not arbitrary, capricious nor contrary to law. See Directive ¶ E3.1.32.1.

ORDER

The decision of the Judge denying Applicant a security clearance is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairman, Appeal Board Signed: Michael D. Hipple Michael D. Hipple Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board